Thoughts on the Kenya Confirmation Decisions

Last week, Pre-Trial Chamber of the International Criminal Court II issued two decisions in the cases concerning the post-election violence that took place in Kenya in 2008. These decisions ruling on the confirmation of the charges, which is a pre-trial stage in the proceedings governed by article 61 of the Rome Statute. The Pre-Trial Chamber must decide whether there are “substantial grounds” supporting the allegations of the Prosecutor, failing which it does not allow the case to proceed to trial.

In the recent decisions, which concerned six individuals, two of the accused were successful while the other four are set over for trial. Some or all of them may seek permission to appeal the decisions.

A Low Score for the Prosecutor

Succeeding with only four of six accused at this preliminary stage, where the Prosecutor must demonstrate “substantial grounds” but need not satisfy a burden of proof of “preponderance of evidence”, let alone “beyond a reasonable doubt”, is not very impressive. The Prosecutor should be able to assess weak cases before they get to this stage.

In total, four cases have been rejected by the Pre-Trial Chambers at the stage of the confirmation hearing (in addition to the two last week, Abu Garda (Sudan) and Mbarushimana (DRC)). Overall, some fourteen suspects have been subject to confirmation hearings. A score of 10 out of 14 is not very impressive. That’s a failure rate of 29%.

Comparisons with the performance of the ad hoc tribunals are useful in assessing the performance of the Prosecutor of the International Criminal Court. There is no equivalent procedural stage, which might lead one to conclude that the weak cases have to wait to the trial stage to get filtered out. The closest that the ad hoc tribunals come to anything equivalent is the defence motion to dismiss that occurs at the close of the prosecution’s case. Indeed, the Prosecutor of the International Criminal Court has made the same analogy (see para. 68 of Muthaura et al. decision). Dismissal of charges at this stage of the proceedings by the ad hoc tribunals is virtually unknown.

We might expect to see a rate of acquittal at the ad hoc tribunals comparable to the rate of rejection at the confirmation hearing stage. Following this reasoning, the acquittal rate at the ad hoc tribunals should be even higher than 29%, given that at trial the defence need only raise a reasonable doubt, and is in a position to fully challenge the prosecution’s evidence.

But this is not what we see at the International Criminal Tribunal for the former Yugoslavia. By my count, there have been final judgments in 94 cases. Only 13 of these have been acquittals. That is a failure rate for the Prosecutor of the Yugoslavia tribunal of 14%, less than half the equivalent statistic for the confirmation hearing stage at the International Criminal Court.

The Prosecutor of the International Criminal Court may feel that the judges of the Pre-Trial Chamber are too demanding. But all they seem to be doing is weeding out the cases that will lead to acquittals at trial, and it is hard to argue with that. The problem seems to be with the Prosecutor, who is not discerning enough with the cases with which he chooses to proceed. Such a high rate of dismissal of charges at the confirmation hearing stage has many negative consequences, among them: it wastes the time and resources of the Court; it creates false hopes for victims; it causes injustice to the individual accused, who may spend considerable time in custody or otherwise in jeopardy with respect to charges that ultimately are not substantial enough to justify a trial.

The role of defence evidence

            In the two Kenya cases, defence counsel produced a very significant amount of evidence in order to challenge the charges. They relied upon article 61(6) entitles the defence to ‘Challenge the evidence presented by the Prosecutor’ and ‘Present evidence’.

            The Prosecutor takes the position that the Pre-Trial Chamber is to accept the prosecution evidence tendered at the stage of the confirmation hearing as long as it is relevant. ‘It should avoid attempting to resolve contradictions between the Prosecution and Defence evidence, because such resolution is impossible without a full airing of the evidence from both sides and a careful weighing and evaluation of the credibility of the witnesses. That will occur at trial.’ (See para. 67 of Muthaura et al. decision).

If this is indeed the position, it is difficult to understand the interest that the defence would have in producing any evidence at all. There might be occasional cases where the defence would want to put testimony on the record, perhaps out of concern that a witness would die or be otherwise unavailable at trial. But this would be very much the exception rather than the rule.

In the Kenya decisions, the judges reject the Prosecutor’s submission. They say that they undertake a “free assessment of the evidence” regardless of the party that submits it. At various points in the lengthy ruling they consider the evidence submitted by the defence but, in general, it is rejected in favour of the Prosecutor’s evidence.

What is the standard of proof here? On the one hand, according to the Statute the Prosecutor is required to establish “substantial grounds” rather than proof “beyond a reasonable doubt”, which is the standard at the trial stage. But what does that mean for the defence evidence? Presumably it is not enough for the defence to raise a reasonable doubt. In order to succeed at the confirmation hearing, must it succeed in challenging the prosecution evidence on a preponderance of evidence standard? Or must the defence establish its case “beyond a reasonable doubt”? It is unfortunate that the decisions do not provide much clarity here.

The defence evidence is rejected, but we do not entirely understand whether it is because the judges had doubts about its reliability or its relevance, or because it was overpowered by the Prosecutor’s evidence. Apparently, the Prosecutor did not produce any live witnesses and relied entirely upon statements, whereas the defence brought many witnesses to the confirmation hearing. Is the issue of the “quality” of the witnesses irrelevant here?

Perhaps the judges are trying to send a quiet message to the defence that they should not waste their time submitting evidence at the confirmation hearing unless it is truly overpowering. There is a danger that if they open the door too widely to defence evidence at the confirmation hearing, this will force the Prosecutor to produce more evidence as well, and then what should have been a rather brief  preliminary proceeding will turn into a miniature trial.

            There are probably too many different standards of proof in the Rome Statute. The lowest is the “reasonable basis” standard for authorization of an investigation (art. 15). Then we go to “reasonable grounds” for issuance of an arrest warrant (art. 58) followed by “substantial grounds” at the confirmation hearing and “beyond a reasonable doubt” at trial (art. 66).  How can these be distinguished. Well, a “reasonable basis” is lower than “reasonable grounds”. “Substantial grounds” are higher than “reasonable grounds”. It is all very arcane. The lower standards of “reasonable basis” and “reasonable grounds” seem to work because they are applied in uncontested or ex parte proceedings. But at the confirmation hearing, where there may be a robust defence, the mystery of what this standard consists of becomes more serious.

The confirmation hearing is an unprecedented proceeding within the international criminal justice system. The defence is entitled to better guidance as to the value of producing evidence, and the standard it must meet in order to rebuff the prosecution.

Judge Kaul’s Dissent

            As in previous Kenya decisions, Judge Hans-Peter Kaul dissents. His main difficulty with the cases has been expressed in earlier rulings. He considers that crimes against humanity require a nexus with State policy, and he interprets the reference to “State or organizational policy” in article 7(2)(a) of the Statute accordingly. It is a view with which several academic commentators including myself are in agreement.

            There are some interesting thoughts in Judge Kaul’s latest dissent about prosecutorial policy. In particular, he refers to the statement issued by the Prosecutor in 2006 announcing his decision not to proceed with an investigation in Venezuela. To my knowledge, this may be the first time that a judge of the Court has considered the overall policy of the Prosecutor by comparing cases that are actually underway with those where the Prosecutor has chosen to do nothing.